November 01, 2013

D.C. Circuit: Contraceptive Mandate Violates Religious Freedom

Requiring employer insurance plans to include contraception coverage "trammels" the constitutional right to freedom of religious expression, a divided U.S. Court of Appeals for the D.C. Circuit said today.

The D.C. Circuit is the latest court to join the legal fray over the contraceptive mandate included in the Obama administration's health care reform law. Federal appellate courts have split on whether the mandate violates the religious freedom of those who oppose contraceptive services and abortion, setting the stage for a fight before the U.S. Supreme Court.

In today's
ruling, the court reversed a trial judge's decision denying an injunction that would block, at least temporarily, the contraception mandate. The trial judge was ordered to take another look at the plaintiffs' request for an injunction.

Francis and Philip Gilardi, brothers who co-own Freshway Foods and Freshway Logistics, sued the U.S. Department of Health and Human Services, arguing the mandate violated their religious beliefs as Roman Catholics. The law, they said, forced them to either include the coverage in their company insurance program against their beliefs or else pay an annual penalty of more than $14 million.

The D.C. Circuit declined to take a position on whether the secular Freshway companies, as opposed to the Gilardi brothers as individuals, could "exercise" religion and be protected under the federal Religious Freedom Restoration Act. The Gilardis argued the companies could serve as surrogates for their owners' beliefs.

That left the Gilardis as individuals. The government argued the burden on the brothers' religious beliefs was too tenuous, since it depended on employees purchasing contraceptive services. The court said the burden on the Gilardis' beliefs started when they had to decide what to include in their insurance program.

"In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties," Judge Janice Rogers Brown wrote for the court.

The Gilardis' attorney, Francis Manion of the American Center for Law and Justice, could not immediately be reached for comment. A representative of the Health and Human Services Department also could not be reached right away.